Cathy Young: Federal ‘Blueprint’ Jeopardizes Free Speech and Due Process

By May 28, 2013

Newsday columnist Cathy Young wrote yesterday to explain why the Education and Justice Departments’ May 9 federal "blueprint" for campus sexual harassment policies puts students’ free speech and due process rights at risk. In her column, Young reminds her readers, "This is not just friendly advice from Uncle Sam: Schools that don’t comply may lose federal funding."  First, she notes the blueprint’s extraordinarily broad, subjective definition of "sexual harassment":  "Unwelcome conduct of a sexual nature," physical or verbal, is deemed actionable regardless of if it is severe or pervasive enough to limit educational or work opportunities (the legal standard for sexual harassment). … Any requirement that such conduct be "objectively offensive" — even to a "reasonable person of the same gender" — is deemed unacceptable.[FIRE] notes that these rules theoretically target any sex-related expression that offends anyone, from a classroom discussion of sexual morality to an unwelcome request for a date. Young also brings attention to the letter’s reaffirmation of the low burden of proof in campus disciplinary proceedings for sexual misconduct cases: "If those adjudicating the charge believe there is more than a 50-50 chance that it is true, they must find the accused guilty." In practice, the standard sometimes dips even lower: Stanford University, as Young points out, has advised administrators and student jurors that they should be "very, very cautious in accepting a man’s claim that he has been wrongly accused." She concludes: [F]ederal civil rights officials seem concerned exclusively with the accuser’s rights. Even with no criminal penalties at stake, the imbalance is troubling, however worthy the goal of protecting students from sexual victimization. Civil libertarians, and feminists who support true equality, should oppose this egregious and biased misuse of government power. Read the rest of Young’s column in Newsday.

Cases: Departments of Education and Justice: National Requirement for Unconstitutional Speech Codes